By Fredrick Ikenna Awkadigwe
It is therefore the absolute submission of the author of this work that the right of a mother to procure her miscarriage is not on the same pedestal as the right of the provider to render abortion services. There is a fundamental right, on the part of a pregnant mother, to procure or seek to procure her own miscarriage up to that time that the legislature with the disposal legislative action on abortion legislative matters determines otherwise.
It is further submitted that Roe is still extant in the USA, irrespective of the presumed overruling. Even pre-Dobbs, when Roe is holding sway, and Dobbs has not been pronounced by SCOTUS, SCOTUS has not decided in Roe that abortion service providers have a considered legal right to provide that service in states that have forbidden elective abortions; and provider abortion rights have always been forbidden in those states irrespective of Roe. Federal criminal competences on abortion subject matters in a federation.
federal criminal competence in a constitutional federation is a fixed product of the intentional federation’s constitutional distribution of legislative powers and matters. Usually, a federation is created by a national constitution that provides for the structure and legal framework of the federation and its component parts, namely states or provinces. A national constitution shares the legislative, executive and judicial powers amongst the tiers of the sub-governments in the federation. It is the national constitution of the federation that ensures that there is no conflict over or scramble for tier privatisation of constitutional legislative powers and matters by any sub-government of the federation, or the commissions or omissions of areas of constitutional legislative coverage or competence for the federation or any part thereof.
Statutory laws of a constitutional federation, are made by the legislatures pursuant to identified constitutional legislative powers and subject matters (see In References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (CanLII), [2021] 1 SCR 175 at p184), and no enactment is made by a legislature in such federation where there is no assigned constitutional legislative power and matter to the legislature for the enactment.
Courts of law cannot question the National Assembly because the National Assemblies have the legislative power to enact criminal laws for the federation or any part thereof, when appropriately assigned by the national constitution. But there is a caveat and it is this: where the National Assembly of a federation, in the exercise of its constitutional legislative power under the sections of the constitution, purports to create an offence or offences traceable to any subject matter in the national constitution, the courts must react if the penal provision is not vindicated by the constitution. See Attorney General of Abia State & 2 Ors v Attorney-General of the Federation & 33 Ors (2006) NGSC 45; (2006) 2 All N.L.R. 24.
An offence is vindicated by the constitution if it is made in accordance with the provisions of the constitution with respect to the proper assignments of constitutional legislative powers and matters. See the supremacy provisions in section 1(3) of the CFRN.
The constitutional legislative power and matter to criminalise or legalise the procurement or provision of abortion services, where such right is not a constitutional right, is a substantive offshoot of the, or a substantiated incidental, constitutional legislative matter available to the constitutional power of the legislatures to regulate human conducts within the confines of the national constitutions. See Chapter 4 of the CFRN read together with Item 68 of Part I of the Second Schedule to the CFRN.
The constitutional legislative subject matter upon which to make ordinary laws in exercise of appropriately assigned constitutional legislative powers, depends on the constitutional legislative matter implicated in the appropriately assigned competence in question, and the tier legislature conferred with the appropriately assigned constitutional legislative power and matter to legislate on the particular constitutional legislative subject matter. See again: In References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (CanLII), [2021] 1 SCR 175 at p184.
The law is trite that for a legislature to have the competent authority to legislate a law on a constitutional legislative matter that shall have been appropriately constitutionally assigned to the legislature, the legislature shall have a competent substantive constitutional legislative power to legislate on an equally competent substantive constitutional legislative matter. The constitutional legislative power to make ordinary laws on elective abortion service matters, is only exercisable by the legislature that is appropriately assigned the constitutional legislative matters of elective abortion services.
Depending on the federation, abortion matters may be located in the Exclusive or Concurrent Legislative List, or dispatched to the residual legislative competences. In reality, elective abortion service matters are not enumerated matters in national constitutions; and thus are mostly residual constitutional legislative matters dispatched to the legislature with the appropriately assigned disposal legislative action for residual competences.
In Nigeria, section 4(7)(a) of the Nigerian Constitution provides that: ‘The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say: any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution’.
From the foregoing identified provisions, it is clear that while residual constitutional legislative matters are dispatched to the states in the USA and Nigeria, the residual constitutional legislative matters in Canada are dispatched to the federal legislatures. When SCOTUS admonishes in Dobbs v Jackson that it is time to heed the U.S. constitution and return the issue of abortion to the people’s elected representatives, and that the ‘permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.’ To be continued tomorrow. Awkadigwe, who is a medical doctor and has a degree in law, wrote from Enugu.
In this article